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Sacked Marketing Director's Re-Engagement 'Impracticable', EAT Rules

An award of compensation is the most common remedy granted in cases of unfair dismissal, but Employment Tribunals (ETs) also have the power to order reinstatement or re-engagement of wronged employees. The Employment Appeal Tribunal's (EAT's) ruling in a guideline case, however, showed why that power is sparingly used (Kelly v PGA European Tour).

The case concerned the former marketing director of an organisation which arranged sporting events worldwide. He worked for the organisation for over 25 years before its newly appointed chief executive formed a negative view of his capabilities and his employment was terminated.

After he launched ET proceedings, the organisation admitted that no fair procedure had been followed and that his dismissal was unfair. The ET stopped short of directing his reinstatement in his former position. The organisation was, however, required to re-engage him in the role of commercial director of its operations in China.

In upholding the organisation's challenge to that outcome, the EAT found that the ET erred in law when considering whether the man's re-engagement would be practicable. The chief executive had testified that he had lost all confidence in the man's abilities. He also viewed the man's covert recording of a meeting as a breach of trust and said that he would really struggle to work with him again.

The EAT noted that fluency in Mandarin Chinese was a requirement of the commercial director's role. Although the man had a facility with languages and expressed a willingness to learn, he did not meet that criterion and would need the services of an interpreter or translator. By ordering his re-engagement in that role, the ET had effectively required the organisation to create a job for a non-Mandarin speaker which did not otherwise exist. The man's case was sent back to the same ET for the amount of his compensation to be assessed.

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